Monday, February 29, 2016

by Michael Dorf
Last week, news surfaced that Nevada Republican Governor Brian Sandoval was one of the candidates the Obama administration was vetting for a possible SCOTUS nomination. Sandoval, who served for about four years as a federal district judge (having been appointed by President George W. Bush) was seen by some as a cagey choice for Obama: Rejecting or refusing to consider a moderate member of their own party would make Republican Senators look especially intransigent. At the same time, however, liberals longing for a chance to transform the Court were understandably worried that by naming a moderate with unknown and potentially quite conservative views on a range of issues, President Obama would be squandering a once-in-a-generation chance to shift the direction of the Court decisively. The conversation on Sandoval then ended fairly abruptly when Sandoval took himself out of the running.

Who's next? I don't have a crystal ball or inside information, so what follows is simply speculation, but it reaches a conclusion that has been largely overlooked thus far (or at least one that I haven't seen anywhere): A purely political choice by Obama could end up tying the hands of a President Hillary Clinton or (as looks increasingly unlikely) Bernie Sanders.

It might be thought that the stakes in the current nomination are entirely political. Because Senate Republicans are committed to not confirming or even holding hearings on any Obama nominee, the point of nominating anyone, the thinking goes, is simply to give a political weapon to Democrats--Clinton or Sanders in the presidential election and Democrats running for contested Senate seats in purple states. Maximum pressure gets applied, in this approach, by Obama nominating a moderate, because opposing such a moderate can be used most effectively in November by the Democratic presidential nominee and Democratic Senate candidates running against Republican Senators Portman (OH), Toomey (PA), Ayotte (NH), and Johnson (WI).

Yet it is not clear that President Obama can readily find a "moderate" with whom to bludgeon the Republicans. Sandoval's example is instructive. Let's assume that Sandoval would trade his governorship for a lifetime appointment to the Supreme Court. He nonetheless appeared to make the reasonable calculation that accepting an Obama nomination and becoming the Democrats' poster child for Republican Senatorial intransigence would severely damage his future as a Republican official--and for nothing, given that he wouldn't be confirmed anyway.

I'll challenge the reasonableness of this calculation below, but for now, I think it safe to assume that Sandoval's logic will be widely shared. If so, it will be nearly impossible to find a Republican public officeholder to accept an Obama nomination to the Supreme Court. Maybe there's a relatively young moderate-to-liberal Republican appointee currently serving on a lower federal court who would be willing to serve as the Obama SCOTUS nominee, but if so, I can't think of who it is.

That leaves Obama to fall back on a moderate Democrat, but given the American people's general ignorance about judicial matters, it would be very easy for Republicans to portray ANY Democrat as inherently liberal. Republican presidential candidates talk about Chief Justice John Roberts as though he were the second coming of William Brennan, after all, so you can imagine their reaction to any Democrat. As Tom Goldstein pointed out on SCOTUSblog, if Republicans were actually to give individual consideration to any Obama nominee, they could certainly come up with some substantive pretext for rejecting that nominee, but so long as Obama nominates a Democrat, they don't even need a pretext. In our era of polarization, a Democrat can be demagogued as a "liberal judicial activist" simply in virtue of being a Democrat.

Goldstein makes another point that has become pretty much conventional wisdom since Republicans coalesced around the idea that they will not hold hearings: Any nomination is simply about the 2016 electoral politics. Goldstein allows that a sufficiently compelling nominee could lead enough Republicans to change their minds about holding hearings but that, even if so, the Senate won't confirm anyone. Thus, he and everyone else conclude, Obama should nominate someone who puts maximum pressure on Republicans so that Democratic candidates can exploit the political advantage. Assuming that someone who plays to the right demographics and reads to the general public (but not the Republican base) as moderate could be found, Obama should nominate that someone.

I think the conventional wisdom is wrong. Even granting the assumption that someone who could be successfully portrayed politically as a moderate exists, this strategy could boomerang, because a President Clinton or Sanders would come under enormous political pressure to re-nominate Obama's nominee if--as seems likely--the Republicans hold no hearings.

Here the game theory gets a bit complicated because Obama, Clinton, and Sanders might well have different ideal Justices. But let's make a somewhat simplifying assumption that any of them would, if they could wave a magic wand, put X on the Court, where X is a youngish, liberal lawyer-judge who would be expected to be confirmed by a just-barely Democratic Senate in early 2017, perhaps after abolition of the filibuster for Supreme Court confirmations or perhaps even if not, during the new president's "honeymoon" period. However, because X would not be perceived as a moderate, Obama following a just-politics strategy doesn't nominate X now. Instead, he nominates Y, who is widely perceived to be to the right of X, and whose views on a lot of issues are unknown. When the Senate carries through on its promise to hold no hearings on Y, Democratic presidential and Senate candidates will use that refusal as political fodder, repeatedly pointing to Y's credentials, appealing life story, and moderation as proof that the Republicans are obstructionist extremists.

Now fast-forward to January 2017 after an assumed successful November for the Democrats. Having won the presidency and a Senate majority by beating the drum for Y as the best thing that could happen to the Supreme Court since John Marshall, it would be very difficult for President Clinton or Sanders then to nominate anyone other than Y, even though the new president and most Democrats would much prefer X, and in a world in which Y hadn't been previously in play, X could be confirmed. Indeed, one could well see the Democratic candidate promising to renominate Y as part of the general election campaign.

My conclusion, therefore, is that President Obama does not have a politics-only freebie here. Whomever he nominates could well end up actually being re-nominated and confirmed by his successor. So he ought to look for someone who helps in the general election AND would be broadly welcomed by Democrats after the election. Meanwhile, perhaps Governor Sandoval was wrong to turn down the possibility of a Supreme Court nomination after all. Or maybe he's just hoping to get named to the Court by President Trump.

Friday, February 26, 2016

by Michael Dorf
An "Open Letter to the Law School Community" from various law students and legal scholars expresses concern about the Milbank law firm's withdrawal of funding for student activities at Harvard Law School following complaints to the firm that the firm's name appeared as a funder of an event at which controversial positions were going to be espoused. I share the view of the signers of the Open Letter that outside funders should not be able to use financial leverage to stifle free speech on campus. I also have great respect for many of the Open Letter's signers, including various of my current and former distinguished colleagues. Nonetheless, I think the letter incorrectly describes Milbank's actions as tantamount to censorship.

I'll begin with a very brief summary of the facts as described in stories in the Harvard Crimsonand New York Times. In 2012, Milbank pledged to give HLS $200k/year for five years to support various student activities, with the particular allocations to be decided by the law school. A condition on the gift was that student events underwritten by Milbank funding would acknowledge that funding publicly. Last fall, a student group called Justice for Palestine hosted an event addressing the concern that pro-Palestinian viewpoints on the Israel/Palestine conflict are systematically disadvantaged. As per the conditions of the grant, the promotional materials acknowledged Milbank's support ($500, which was used for pizza). An outside pro-Israel group saw the promotion on Facebook and complained to Milbank, which, through the law school, requested that the firm name be taken off of the promotional material and then decided that it would not fulfill the original terms of the pledge for the remaining years, agreeing with HLS that Milbank funds would instead be used to support other HLS activities. For the balance of this academic year, and presumably for future years, HLS is replacing the Milbank funds with other funds at the same total level--although according to the Crimson story, the allocations differ somewhat. The current-year funding for Justice for Palestine was not diminished.

The Open Letter makes the following declaration:

It is unacceptable for a law firm to provide a general gift to a law school to support student events – intended to be administered by law school staff - and then seek to exercise control over the content or viewpoints being expressed by students that seek funding from that general fund.

I agree, but I see no evidence, and the Open Letter cites no evidence, that Milbank in fact sought to control the views expressed by students at fund-supported events. Milbank did not initially exercise any control over which groups were funded or at what levels. And when Milbank redirected its future HLS funding, it did not redirect its funding away from Justice for Palestine in particular or only from student groups whose viewpoints it did not share. It redirected funding away from all student groups. Because Milbank had no legal or other obligation to fund student activities at HLS, its failure to fund them in the future can hardly be called censorship. Indeed, because of the fungibility of money, it is hardly obvious that the redirection of Milbank funds (presumably to activities that would have cost HLS money otherwise) and their replacement with other funds even amounts to a withdrawal of Milbank funding.

Indeed, despite the reporting in the Crimson and the New York Times, it is not even clear that Milbank sought the re-directing of funding for the current year. A letter from Milbank partner Thomas Arena (graciously posted by Prof. Brian Leiter, who signed the Open Letter) states that Milbank did not even request that its current-year funding for any student group be replaced by HLS funds, while its funds went elsewhere. Arena argues--seemingly without contradiction--that Milbank's only concern has been that it does not want the public to get the false impression that it is taking a position in favor of student speech its grant to HLS was supporting, given the wide variety of viewpoints that students will inevitably espouse.

Thus, to my mind, there is no issue of censorship or even of chilling speech presented by the actual facts of this dispute. The Open Letter does, however, raise interesting and important questions more broadly.

Note the qualifier in the language I quoted above from the Open Letter: It is unacceptable for a law firm (and presumably any outside funder) to exercise content or viewpoint control in granting funds "intended to be administered by law school staff." Why that qualifier? Presumably because the authors and signers of the Open Letter recognize that it is acceptable--or at least widely accepted--for outside funders to exercise content or viewpoint control in granting funds that are not administered by law school staff. For example, the national Federalist Society and American Constitution Society provide funding to their respective student chapters but not to other organizations expressing different viewpoints.

To be sure, both Fed Soc and ACS frequently sponsor debates and other events at which diverse viewpoints are expressed, but no one thinks that they are obligated to do so, and their events typically have a dominant perspective. If a Native tribe wanted to donate to Harvard's Native American Law Student Association, the fact that it wasn't donating money to other student organizations would raise no free speech issues. If a union-side labor law firm donated to Harvard's Labor & Employment Action Project--whose activities include "activism where we see a need to lend our voices to local or national struggles"--that would not be censorship of anti-union student speech. So I agree with the Open Letter's tacit acceptance of the proposition that outside groups, including law firms, can choose which student activities to fund based in part on the content and viewpoint of the student groups.

Now to a somewhat harder question. I said above that I agree with the Open Letter's claim that outside funders shouldn't be able to exercise control over the content and viewpoint of student groups where the funds are administered by the law school. That's why I might have signed the Open Letter if it had been based on an accurate account of what actually happened at Harvard. But I want to be clear why I agree that outside groups shouldn't be able to control the content and viewpoint of student speech subsidized by funds administered by the law school: It's because they are outside groups, not because student groups have a right to receive law school funding without any regard to the content or viewpoint of their speech. I do not think there is such a right, at least not an absolute one.

Harvard is not a state actor, and so the First Amendment does not limit its actions. If Harvard were a state actor, and if its student activities fund were deemed to be a limited public forum it had created, then it would be permitted to select which activities to fund based on the purpose of the forum (content lines) but not based on the viewpoint of the students. That's the holding of the Rosenberger case. I'm not sure the SCOTUS would really follow this rule in an extreme case. Would the Justices really say that a public university cannot deny funding to, say, a student chapter of the Ku Klux Klan? In Christian Legal Society v. Martinez, the majority avoided this kind of question by characterizing UC-Hastings Law School's "all-comers" policy (under which student groups had to be open to any student who wanted to join) as viewpoint-neutral, and thus only incidentally burdening the expressive association of the plaintiff group. But, in any event, these precedents are only relevant insofar as they are persuasive, because, as noted, Harvard is a private actor.

As a matter of their own institutional values, should private universities adopt a rule of viewpoint-neutrality in funding student organizations? My view is "yes, up to a point." On matters of remotely reasonable contestation, commitments to free speech and academic freedom should translate into the university promoting broad debate. However, universities also aim to be inclusive communities, and the expression of some viewpoints that are protected by the First Amendment against government censorship need not be subsidized by a private university (and in an extreme case might even be the basis for discipline). A student group that cannot plausibly be characterized as promoting anything other than racial or ethnic hatred could be denied funding by a private university committed to both free speech and inclusion.

But that exception really ought to be reserved for extreme cases. Thus, although pro-Palestinian groups frequently equate Zionism with racism, and pro-Israel groups frequently accuse Israel's critics of anti-Semitism, nearly all speech on the Israel/Palestine conflict should fall comfortably within the heartland of remotely reasonable contestation. At least based on their self-descriptions on the Student Organizations at HLS webpage, both Justice for Palestine and Alliance for Israel would merit funding under an appropriate policy that forbids funding for what we might loosely call hate-speech.

As I looked at the information that my research assistants had gathered for me regarding Kasich's stands on issues (as opposed to his attempts to reinvent his image as an aw-shucks regular guy), I decided not to include any discussion of Kasich's views on Social Security in the Verdict column. This was in part because there were so many other issues on which to expose Kasich's immoderation -- so many that I filled a column without even mentioning Kasich's having signed a bill this month to end Ohio's funding of Planned Parenthood clinics -- but also because Republicans' views on Social Security are so indefensible that I really could not allow the column to be taken over by that one issue.

For what it might be worth, which is surely not much, Kasich is on board with the Republicans' plan to cut Social Security benefits for people who are currently younger than about 40 or so. (His views are never quite clear or fixed.) The irony of this is notable, because Republicans have spent decades telling young people that Baby Boomers are ripping them off, only now to tell those same young people that the solution to this supposed ripoff is not to prevent young people's benefits from being reduced (which could easily be done, through any of a number of means) but to go ahead and cut those benefits even before we are sure that there will be a reason to do so.

Kasich is especially unapologetic about this. Last October, while campaigning in New Hampshire, he told a younger voter to "get over it" when that voter objected to the idea of benefit cuts. According to CNN: "He initially said young people would see 'a lot' lower benefit, before
correcting himself to say perhaps not 'a lot,' but some amount." And of course, he went for the big diversion: "We can't balance a budget without entitlement reform. What are we, kidding?"

We can leave aside for now the reality that there is no good reason to run a balanced federal budget, and that the former chair of the House Budget Committee ought to be aware of that. After all, Kasich's entire career has been built around an obsession with a balanced-budget amendment. He is too far gone on that issue to say more than I said in today's Verdict column. But sweeping Social Security under the label of "entitlements" is even more indicative of Kasich's fundamental dishonesty about budgetary issues -- a dishonesty that he shares fully with nearly every member of his party.

The problem for Republicans, as Paul Krugman has pointed out frequently, is that even Republican voters like "the entitlements." Well, maybe not Medicaid, which is for poor people. But they love Social Security and Medicare. When Republicans nominated now-House Speaker Paul Ryan to be their Vice Presidential nominee in 2012, they had to "shake the etch-a-sketch" and pretend that Ryan had not been trying to privatize those programs for his entire career. They even had Ryan attacking President Obama for cutting Medicare's costs, even though Ryan's own budgets had relied on those cuts to meet his budgetary goals.

Speaking of the Speaker, The New York Timesnoted today that likely Republican presidential nominee Donald Trump (and doesn't that description make you shudder!) and Ryan might have some serious difficulties seeing eye to eye on a lot of issues. Trump's popularity with the angry old white men who make up the Republican base puts the lie to the idea that they hate big government, whereas Ryan's entire persona is based on the laughable notion that he is an "ideas guy" who can lead the Republicans in a conservative revolution toward a small-government utopia.

(And too many liberals are still drinking this Kool Aid. The Times's holier-than-thou columnist Nicholas Kristof wrote today that Ryan "seems to have genuine aspirations to legislate." Which must be why he is refusing even to listen to Obama's budget spokesmen, and why he spent years having his colleagues pass "magic asterisk" budgets that never had a chance of becoming law.)

Interestingly, in a related news item contrasting Trump's and Ryan's views, the Times -- before quoting Trump's promise not to cut Social Security, Medicare, or Medicaid -- printed this quote from Ryan: "All three entitlement programs that are in place today, Medicare, Medicaid Social Security, all go bankrupt in about 10 years." A web search for that statement reveals that Ryan said that in 2007 (which the Times did not note, oddly), eight and a half years ago. Let us take a moment to marvel at the multiple levels of ignorance embodied in that statement.

First, there is the obvious fact that none of these programs will go bankrupt in 2017, as Ryan claimed they would. Even the worst predictions about Medicare and Social Security show them running without adjustments for at least another fourteen years, and Social Security could continue to run without any adjustments forever, depending on what happens to wage growth over the next two decades.

Second, there is an enormous difference between going "bankrupt" and needing to adjust a government funding program. As Paul van de Water of the Center on Budget and Policy Priorities pointed out last year, "Medicare Is Not 'Bankrupt,'" and it is not going to become bankrupt. Bankruptcy is a technical term that people like Ryan toss around to scare people, suggesting that the programs will be dismantled when they "run out of money," which is simply false. Kasich, too, relied on this scare tactic after that New Hampshire campaign appearance, saying that Democrats "basically allowed this program to get to a point where it could go bankrupt."

Third, even if one uses "trust fund reaches a zero balance and thus benefits need to be cut by some amount (maybe 10-20%), because we refuse to raise taxes" as a definition of the word bankruptcy -- because, hey, who cares that that is not what the word means? -- Medicaid is not even set up that way. It is not reliant on a trust fund that could reach a zero balance, and it in fact acts as an important automatic stabilizer when the economy moves in the wrong direction.

This claim that Social Security and Medicare are going to bankrupt the country, of course, is not limited to Ryan and Kasich. Thomas Byrnes Edsall, the veritable embodiment of the conventional wisdom, wrote a column this week claiming that Trump and Bernie Sanders are really quite similar. (Not just wrong, but by this point hackneyed.) He wrote: "Both reject mechanisms to limit spending on Social Security and Medicare." Really? Sanders and Trump "reject mechanisms" to limit spending on those programs? Well, I would bet that everyone rejects some mechanisms but would embrace others. Sanders, like almost all Democrats, thinks that the Republicans' refusal to let Medicare negotiate lower drug prices is insane. But presumably because Sanders is not agreeing to cut benefits by increasing the retirement age or allowing inflation adjustments to lag actual inflation, he is an extremist.

In my Verdict columns discussing Rubio and Kasich, I set myself an easy task: Demonstrate that they are not moderate. I allowed for the possibility that people could agree with those immoderate positions, but I insisted that both men be seen for the extremists that they truly are. On Social Security, Medicare, and Medicaid, however, the issue is not moderation versus immoderation. It is simply comprehension versus incomprehension, with people like Ryan leading the way in misleading people about those very popular programs.

Luckily, even Republican voters seem no longer to be buying that line. I am obviously not happy with the person to whom they are turning, but it is good news indeed that they are turning away from Ryan's barely camouflaged attempts to benefit the rich at the expense of even middle class Republicans.

Wednesday, February 24, 2016

by Michael DorfMy Verdict column for this week addresses the claim by Senator Mitch McConnell and other Republicans that confirming a nominee of President Obama to the Supreme Court would deprive the American people of a voice in the selection process. I previously termed this claim absurd, and I don't back down in the column. In this accompanying post, I want to pull back momentarily from discussing Justice Scalia's successor to linger over the man himself--and where he fits in the story of the conservative movement over the last five decades.

Antonin Scalia was a seemingly unlikely champion of the common folk--an opera-loving, Harvard-educated personal friend of people in the highest places who, when criticizing his colleagues for their supposed elitism, once put the point in this most un-common way: "When the Court takes sides in the culture wars, it tends to be with the knights rather than the villeins--and more specifically with the Templars." Yet in defending the prerogatives of the powerful by invoking the rights of the commoners, Scalia was a perfect exemplar of the modern conservative movement spawned by Richard Nixon, perfected by Ronald Reagan, and now possibly coming apart at the hand of Donald Trump.

Prior to the 1960s, the Republican and Democratic Parties were not as ideologically coherent as they have since become. For example, on matters of racial equality, northern Republicans were on average about a standard deviation more liberal than southern Democrats--a seemingly durable legacy of the Civil War and Reconstruction. LBJ's support for national civil rights legislation began a trend that Nixon's "Southern Strategy" accelerated and expanded as, over time, cultural conservatism came to include not only hostility to the claims of racial minorities but also opposition to abortion, gay rights, gun control, and various other agenda items of liberals and progressives. The people who would come to be known as "Reagan Democrats" did not necessarily support the GOP's more traditional efforts to keep taxes on the wealthy low and to limit regulation of businesses, but they took the deal. For their part, the people formerly sometimes known as "country club Republicans" accepted the cultural conservatism they didn't necessarily endorse in exchange for the social conservatives' acquiescence in policies that aimed to block redistribution (except for redistribution from poor to rich).

This was always a precarious political alliance, but it held for a long time and reached its most refined articulation in the jurisprudence of various Republican Supreme Court justices, especially Scalia. Along with his fellow Republican-appointed colleagues, Justice Scalia was highly pro-business. Reviewing data from the 1946-2011 Terms, Professors Epstein, Landes, and (Judge) Posner found that Scalia was in the top-most-pro-business quarter of justices--although, interestingly, he was the least pro-business of the five Republicans who served together over the last decade. (In the same 66-year period, Alito and Roberts were one and two--depending on which measure one uses, they flip--followed by Thomas and Kennedy at five and six--with the same qualifier--and then Scalia at nine. (See Table 7 in the article linked above). Thus, although Scalia appears to have been the median justice on business cases during the Roberts Court, that's moderation only if grading on a generous curve. A veteran of the Nixon and Ford administrations before his appointment to the DC Circuit and the the Supreme Court by President Reagan, Scalia was very comfortable promoting the country club Republican agenda.

But Justice Scalia was even more comfortable promoting the social conservative agenda, in which he believed deeply. With the exception of his views on the Sixth Amendment and on some First Amendment questions, Justice Scalia was an extremely reliable vote for the culturally conservative position, whether it meant invoking some constitutional provisions to strike down gun control, voting rights legislation, and affirmative action or calling his liberal colleagues judicial activists for relying on those same (and other) constitutional provisions to strike down abortion restrictions, the death penalty, and laws restricting the freedom of LGBT Americans.

In an insightful critical discussion of Scalia's legacy on Slate, Eric Posner marvels at how Scalia could accuse his fellow justices of ideologically-inflected judging while failing to notice that his own voting pattern was no less ideologically predictable than than that of his colleagues. (Posner rightly notes that the few exceptions--such as Scalia's First and Sixth Amendment votes--prove little: No judge votes his ideological druthers in every case; the legal realist charge is that ideology matters a great deal, not that impersonal legal materials don't matter at all.)

To my mind, the mystery of Scalia's blindness to the large impact of his own ideological priors on his judicial behavior is no mystery at all. Just as a fish doesn't know he's wet, Scalia was unaware of his own status as a conservative culture warrior because he held his culturally conservative convictions so firmly that they appeared as self-evident truths to him. How else to explain the fact that in the same dissent in which Justice Scalia casually dismissed the idea that gays and lesbians count as an oppressed group because they "enjoy[] enormous influence in American media and politics" (twenty years ago, mind you!), he accused the justices in the majority of "tak[ing] sides in the culture wars"? Or that, in his zeal to read the Fourteenth Amendment's Equal Protection Clause as a mandate for "color-blindness," he repeatedly made a simple and obvious error about what words appear in the text of the Clause?

I do not rehash these decades-old unpleasantries to speak ill of the dead. On the contrary, I genuinely mourn and miss the man. My point is rather that Justice Scalia's excesses--in the substance of his opinions and in his attacks on his colleagues--are explicable only as an expression of his passionate embrace of cultural conservatism.

He was almost but not quite the last of his kind. Justice Scalia leaves behind on the Court two colleagues who likewise embody the post-Nixon conservative marriage of economic and cultural conservatism. Although neither Clarence Thomas nor Samuel Alito can match Scalia for bravura, in addition to their deep conservatism, each occasionally approaches Scalia levels in channeling the anti-supposedly-liberal-establishment ressentiment characteristic of the cultural right. Justice Thomas is at his most animatedly peeved when resenting race-conscious government programs. Interestingly, so is Justice Alito, although for somewhat different reasons, one guesses.

Speaking of anger, I come to Trump. Running as a Republican, Trump has vacillated between adopting traditional conservative positions and thumbing his nose at them. The nose-thumbing is more pronounced on economic issues, where he has rejected conservative (and centrist Democratic) orthodoxy on free trade, but Trump's embrace of cultural conservatism is also highly suspect to anyone who has paid attention to his expressed views over the years. Senator Ted Cruz put the point offensively in deriding Trump's "New York values," but he was not wrong.

Where the Republican establishment may be wrong about Trump is in assuming that the "low-information" voters drawn to Trump are mostly misled into thinking that Trump is a genuine conservative. It seems at least as plausible that they find Trump appealing despite the fact that he is not genuinely conservative because they are not genuinely conservative in the sense of holding strong commitments on the litmus-test social issues for the conservative movement over the last four-plus decades. Put provocatively, the people who have been grudgingly swallowing the country-club Republican agenda as the price to pay for the social conservative agenda's inclusion in the Party platform may not even be all that socially conservative. Perhaps anti-abortion, anti-gay, pro-gun, anti-tax, anti-immigrant, and borderline (and not-so-borderline) racist views are mere epiphenomena for the Trump demographic. The anger born of insecurity is primary. By tapping into the anger and insecurity, Trump earns something like a free pass on issues.

To be sure, there have long been people who are genuinely conservative across the range of issues. Antonin Scalia was exhibit A. But if Scalia hadn't existed, Richard Nixon, Ronald Reagan, and Roger Ailes would have invented him. The seeming staying power of Trumpism within the Republican electorate reveals, however, that modern conservatism may be in deeper trouble than anyone thought. It's not just that the core demographic is aging and shrinking. Nor are the tensions between economic libertarians and social conservatives inherently unmanageable or new. The problem is deeper. For all of the awfulness of Trump himself, the fact of his appeal to many Republican voters should be a hopeful sign for liberals. It signals that even many self-identified conservatives do not in fact care much for the key commitments of the modern conservative movement.

I could, I suppose, try to weasel out of my prediction by pointing to the question mark at the end of the title of my post. And I even included a disclaimer: "Rather than calling this an affirmative prediction, maybe it is more accurate to say that I will not be in the least bit
surprised if Bush makes the comeback that I described above." But that would not be true to my own words, because I did say that I "think[] that the Republicans will end up nominating Jeb
Bush this year." I knew that it was unlikely, based on the evidence at the time, but I really thought that he would be the last man standing. I am genuinely surprised. Pleasantly surprised, but surprised nonetheless.

How to explain my resoundingly incorrect prediction? The most obvious explanation is that the publicly available information about Bush's finances appears to have been wrong. When I argued that "[t]he preferred candidate of the old order is sustained by money, name
recognition, money, respect (even unearned respect), money, family
connections, and money," I should have emphasized money a bit more. Before writing my post, I looked at figures reported in The New York Times regarding Bush's funding, noting at the time that he had the third-most money among Republicans "on hand," but also that he had the biggest SuperPAC by far.

As it turns out, he had spent most of his money (arguably quite badly) and was actually in danger of not being able to move on to other states after Saturday's loss in South Carolina, even if he had decided to gut it out. Given that his best hope was to wait out the other very conservative establishment candidates and be the last not-Trump-or-Cruz standing, his strategy relied on having enough money to keep plodding until the party needed him at the end. Not having money was not supposed to be a problem, but it was. If Bush's true financial position were known, it would have been obvious that lingering was not an option.

I prefer, however, to think that Bush failed not only because of the surprising financial shortfall, and not merely because of strategic blunders by his campaign, but simply because he was a horrible candidate.

It is especially annoying that, even before he dropped out, reporters were giving Bush credit for being "too decent" or "too well mannered" or even "too genteel" to win a bare-knuckle brawl. That was a ridiculous claim, as Maureen Dowd's NYT op-ed on Monday helpfully reminded us. The Bushes might not deign to get their knuckles bloody, but that is merely because they have always been willing to hire out their dirty work. It is easy to look genteel while quietly giving stacks of money to goons.

Even so, in the aftermath of his departure, supposedly neutral reporters are now writing what amount to love letters to Jeb!. The most laughable claim is that he was a bad candidate because he was too cerebral: "He talked with deep passion about space travel, and spoke to kids as if
they were grown-ups, offering 8- and 9-year-olds treatises on the
nation’s debt." The problem, of course, is that what Bush says about the national debt is nonsense, even when it was not literally false.

As I pointed out last summer, when Bush looked like the front-runner, "Jeb Bush is Confused" about economic policy in general, especially in terms of what should be Budget 101-level knowledge about Social Security. That program does not need to be fixed, but Bush (the former governor of the state that relies on Social Security more than any other) would have changed it without even knowing that it is already changing. And let us not forget that Bush claimed that he could get the economy to grow at a permanent rate of 4% per year, which is beyond implausible.

In some sense, of course, that Bush is actually quite uninformed and fatuous might not have mattered, given that the press was willing to equate being boring with being smart. I believe, however, that his ignorance did matter, because at some point a guy who is supposed to be "the smart one" needs to live up to his billing. Bush never said anything that made people think, "Oh, that's why people say he's smart. Yes, now I see it." Even people who hate Hillary Clinton have that damn-she-really-is-brilliant realization. With Jeb, not so much.

One of my research assistants grew up in Florida, and she talks to me often about her childhood years in the public schools that Governor Jeb Bush was busily destroying. He promised to take those policies to the national level, which would have been a disaster. Bush talks not about public schools but "government-run monopolies run by unions," and his dearest wish has been to bust teachers' unions and to privatize public education, preferably with a strong religious element.

Let us not forget that this is a man who supported an amendment
to eliminate the legal separation of church and state in Florida, so
that public school funds could be re-routed to religious schools. Or
that he would allow only Christian refugees from Syria into the United
States. Even on issues that he cares about, in other words, Bush is not
driven by intelligent analysis of actual facts but by blind conservative
ideology.

Perhaps it should not continue to surprise me that reporters could look at a partisan ideologue like Bush and not see him as a hack. The voters who rejected Bush in Republican primaries and caucuses were apparently doing so because he was not saying the right kind of crazy things, but it is not as if Bush was taking positions that the Republican
base would deem to be too moderate. The people who were supposed to be Bush's ultimate supporters, which is to say Republican voters who would be impressed by his substance even if they disagreed with him on one issue or another, never had any reason to think that there was ultimately anything there.

One of the post mortems on Bush's campaign has it that he was trying to be a smart, grounded, substantive guy in a year when his party's voters wanted none of that. He is none of those things. He is an uninteresting candidate who campaigned badly, and it turned out that there never was any substance on which he could ultimately make his case. Good riddance.

Monday, February 22, 2016

Following the untimely passing of Associate Justice Antonin Scalia, the nation is engaged in a vigorous debate over whether the Republican-controlled Senate should confirm President Obama’s nominee to replace Justice Scalia on the Supreme Court (President Obama has made it quite clear that he intends to nominate a successor). Senators (and presidential candidates) Ted Cruz and Marco Rubio have both argued strongly against even voting on a replacement nominated by President Obama, leaving the decision for the next President. Senate Majority Leader Mitch McConnell has also expressed this view, though other Republican Senators are waffling.

The discussions about historical precedents have become frankly tedious (and entirely partisan). They are also beside the point. There is no doubt that the Senate has the power to refuse to vote on a nominee, or to vote down a nominee, for purely partisan reasons or to await an election. And what path the Senate does eventually walk will undoubtedly turn on a political calculation by the Republican leadership rather than either precedent or principle. That is politics.

What I want to address is a separate matter, which is the practical, legal consequences of a decision by the Senate to refuse to confirm any Obama nominee. It is now February of 2016. The Supreme Court holds one term a year, beginning on the First Monday in October, and ending in June or early July (the Terms are named for the October in which they start, so we are in the October 2015 Term, or OT 2015 in the jargon). The last oral arguments for OT 2015 will be held on April 27. That means that unless a new Justice is nominated and confirmed before that date, the appointee cannot participate in any case before the Court this Term. Given the current atmosphere on Capitol Hill, clearly that is not going to happen. So, almost all the cases this Term (excepting those decided before Justice Scalia’s death) will be decided by an 8-Justice Court, split evenly between appointees by Republican and Democratic Presidents. Given the hugely important issues pending before the Court currently (including the future of public sector unions, abortion regulation, affirmative action, and the President’s immigration policies, to name just a few), that is very unfortunate.

But it gets worse. Whoever wins the 2016 presidential election will be inaugurated on January 20, 2017 (per the Twentieth Amendment). Even if the President-elect has focused on the question of a nominee to replace Justice Scalia before taking office, a proposition which is far from clear given the complexities of any presidential transition, realistically the earliest he/she could send a nomination to the Senate would be early February of 2017. Then, hearings must be held and a vote taken. It took 87 days for the Senate to confirm Justice Kagan, 66 days for Justice Sotomayor, and 82 days for Justice Alito. They are the three most recent nominees on whom the Senate has held a vote, and the only relevant case studies since the 1990s (Chief Justice Roberts does not count because his nomination to an Associate Justice position on the Court had been pending for quite some time before Chief Justice Rehnquist died and he was re-nominated to the Chief Justiceship). Given that partisan rancor has hardly decreased since Kagan’s nomination in 2010, this means that we can expect around two-and-a-half to three months at a minimum to pass before a new Justice could be confirmed, if they are confirmed, which puts us in late April or early May. The last day of oral argument for OT 2016 is April 26, 2017. Realistically, therefore, if no Obama nominee can be confirmed, the Court will be without a full complement for essentially two entire Terms.

Why is this a problem? Because the most important job of the Supreme Court is to provide clarity and legal certainty. Certainly Justice Scalia, the author of a law review article titled “The Rule of Law as a Law of Rules,” would have agreed. But the Court cannot provide certainty if it cannot decide cases and establish a uniform legal rule for the entire nation. Consider one issue before the Court this year in a case called Zubik v. Burwell: whether the exemption the Obama Administration has granted religious nonprofits from the contraceptive mandate in Obamacare is legally sufficient. The lower courts are divided on this issue, and it is frankly an extremely difficult and contentious one. It would be extremely useful, for nonprofits, for the government, and for the public, to know the answer, whatever it might be. But if the Court splits 4-4 in the case, as is likely, no answer will be forthcoming until 2018 at the earliest (assuming a new case comes to the Court in OT 2017).

Nor is Zubik an anomaly. It is widely understood, and the Supreme Court’s own rules recognize, that perhaps the most important function the Court plays is to resolve “splits,” meaning legal disagreements among lower courts. Many of these splits arise over highly technical, politically invisible issues that get no press coverage, but nonetheless affect the lives of thousands or millions. But they are very often difficult, close issues, because, after all, highly-qualified lower court judges disagreed as to the outcome. As a result, an 8-Justice Court can be expected to regularly divide evenly on a substantial fraction of them, often on lines that have no partisan correlation. The result: continuing legal uncertainty and division.

My basic point here is simple: clarity and legal certainty matter, often more than how legal disagreements are resolved. The current partisan impasse between the President and the Senate threatens to create substantial, prolonged legal uncertainty on the Supreme Court on many important issues. That is bad for Democrats, bad for Republicans, and bad for the United States.

Saturday, February 20, 2016

By Eric SegallA few days ago, Eric Posner wrote an essay suggesting
that, with Justice Scalia’s death, originalism as a legal theory will slowly
fade away. Generally speaking, he wrote, law professors write “scholarship with the hope and expectation that their work
will influence public policy.” But, with only one Justice remaining on the
bench who proclaims to be a serious originalist (Justice Thomas), and given Thomas' “idiosyncratic” voting patterns, neither Supreme Court litigators nor the other
Justices will spend much time making originalist arguments. Inevitably, assuming
the next Justice is not an originalist, which is likely, the only audience left
for originalists will be themselves, and in the long run the motivation to
write for each other will not be sufficient to keep the originalism flame alive.

Posner’s essay led to responses by Lawrence Solum, Michael
Ramsey, and Jack Balkin. I want to focus
here on Balkin’s reply.
Professor Balkin is one of our most influential legal scholars who has made
enormous contributions to our understanding of the law and the Constitution.
Unfortunately, his views on originalism have always been, to say the least,
puzzling.

As he mentions in his reply to Posner, Professor Balkin has “skin
in the [originalism] game” because of his book “Living Originalism.” No, that
is not a typo. As I’ve written here
before (and as Mike Dorf argued at length here), Balkin’s theory of originalism, which he says supports Roe, allows virtually any result in any
case because he believes that identifying a provision of the Constitution as “vague”
rather than “specific” is both an originalist move and one which then
authorizes judges to use modern standards to decide hard cases. Of course, that move makes originalism indistinguishable
from “living constitutionalism,” and also makes history largely irrelevant to
constitutional law litigation (which is how it should be).
Professor Balkin, a progressive, obviously prefers that history be
largely irrelevant to modern cases so that we can move towards a more just and
egalitarian society.

Balkin’s reply to Posner argues that “originalist arguments”
will never go away for a number of reasons, including that judges rely on them
in cases of first impression; judges use them to overrule precedent (law not
values made me do it); and originalists arguments are so important to conservatives
that “conservative think tanks, lawyers, and law professors will continue to
talk, write, and argue in originalist terms, because originalism continues to
provide them a common way of thinking about the Constitution and solving
particular legal problems. The conservative movement is not about to abandon
originalism, and as long as there is a conservative movement in the United
States, you can predict that originalism will remain a powerful force in legal
argument.”

All three of these replies miss the point. Yes, judges may
well continue to trot out originalist evidence to support results they have
reached on other grounds. But so what? They did that long before Justice Scalia or Judge Bork
came onto the scene, as a way to use legal rhetoric to mask value choices.
Balkin admits that “originalist arguments have been commonplace in the opinions
of the Supreme Court of the United States from the country's inception, even if
very few Justices have adopted originalism as a comprehensive theory.”

Balkin says that Scalia did more than use originalist arguments
but actually embraced it as a “comprehensive theory.” Certainly Scalia said he
did that but as I’ve argued
before, and Mark Graber just wrote
on Balkin’s own blog, in the real world Scalia “was a judicial activist who
struck down laws based on a contemporary constitutional vision that he
campaigned for aggressively in both legal and political settings.” In other
words, even Scalia did not vote on an originalist basis and, as I’ve pointed
out, neither does Justice Thomas. In this sense, I disagree a bit with (Eric) Posner because, as a result-generating device, originalism cannot fade away because it
was never here to begin with.

The harder question is, without Scalia’s loud voice proclaiming
over and over that the Constitution is “dead, dead, dead,” will the pretense of
originalism be harder to maintain? Eric thinks so while Jack believes
conservatives will continue to talk the talk. I’m not sure but I do know
virtually no one outside of legal academia will care.

A good analogy would be critical race theory, which is an
important part of the academy’s progressive culture and not likely to go away
soon. There are conferences devoted to the topic, and it provides a common
language for many. I suspect there are as many legal scholars devoted to critical race theory as originalism.

I have significant sympathy for the critical race theory movement and agree with
much of its descriptive and normative account. But, no one suggests that
critical race theory drives results when cases are actually brought in front of
real judges and, the sad truth, is that, outside of academia, who cares about
critical race theory?

The main difference between critical
race theory and originalism is that the latter had Scalia and has Thomas
singing its praises even if they didn’t vote accordingly, whereas the former doesn’t have a Supreme Court spokesperson. With Scalia gone, the energy for the
theory among non-judges may well dissipate as Eric suggests. But, for real
folks practicing real law in front of real judges and their clients, originalist
arguments will be what they have always been, with or without Scalia, window dressing
for judges and interesting fodder for academic debate.

Friday, February 19, 2016

by Michael DorfApple's resistance to the order directing it to develop software that could circumvent the encryption* on the iPhone of deceased San Bernardino killer Syed Farook cites two main objections. First, on policy grounds, Apple argues that orders such as this--that Apple "hack" one of its customers' phones--will, in the long run, do more harm than good. Apple and its various defenders across the tech and civil liberties world argue that a technology developed for the laudable purpose of breaking encryption on a terrorist's phone could leak into the hands of hackers and other bad actors (including other terrorists). In other words, Apple is not simply saying that privacy should prevail over security (although it is certainly saying that pretty loudly), but also that this sort of order would undermine security. I don't have a well-informed view about the merits of this argument, so I will leave it to others.

Apple's second argument is more legal in nature, and so I will focus on it. Apple argues that Congress has not legislated a requirement that makers of phones, computers, and other electronic devices that use encryption build in a "back door" that allows the government to circumvent encryption. Under the circumstances, Apple contends, reliance on the All Writs Act (part of the Judiciary Act of 1789) is an overreach. Is that right?

The short answer is no. As a general matter, it is perilous to infer anything about the state of the law from congressional inaction, but here we do not need to rely on that general proposition. There is case law on point.

The leading SCOTUS precedent is United States v. New York Telephone Co., decided in 1977. There, the FBI sought the assistance of a telephone company in installing a pen register--a device that records the phone numbers called and from which calls are received--on the line of a suspect under investigation. The phone company provided some but not all of the assistance the FBI requested, resisting primarily on the ground that the demand for assistance violated another federal statute limiting wiretapping. The Supreme Court rejected this argument.

But where did the government even get the affirmative power to compel the assistance of the telephone company? The Court cited two sources. First, Federal Rule of Criminal Procedure 41 authorized a search warrant based on probable cause, so the government was entitled to attempt to install the pen register. (The Rule linked above has been amended since 1977, but not in a way that would render it inapplicable to the government's proposed "search" of Farook's iPhone.) What gave the government the power (after successful application for a court order) to compel a third party not itself suspected of criminal activity to provide affirmative assistance? The Court said that this power was conferred by the All Writs Act:

The power conferred by the Act extends, under appropriate circumstances, to persons who, though not parties to the original action or engaged in wrongdoing, are in a position to frustrate the implementation of a court order or the proper administration of justice . . . and encompasses even those who have not taken any affirmative action to hinder justice.

Note that Apple could be said to fall within the core of that statement if one regards the encryption of iPhones as an "affirmative action" that hinders the FBI's efforts, but even if not, the language makes clear that Apple--like New York Telephone before it--could be compelled to assist the FBI. Apple's argument that Congress needs new authority to require it to assist the FBI thus appears to be wrong.

New York Telephone recognized that there could be limits to the government's authority under the All Writs Act to compel complete strangers to a case to assist the government. Presumably, if the San Bernardino killer had owned an Android phone, the FBI couldn't have compelled Apple to provide assistance hacking it simply because it thought that the Apple engineers were better than those employed by Google. But the case involves an iPhone, and so what the Court said about New York Telephone nearly forty years ago seems equally applicable to Apple: "we do not think that the Company was a third party so far removed from the underlying controversy that its assistance could not be permissibly compelled."

Magistrate Judge Pym's order provides Apple with one possible out. She gives Apple the opportunity to demonstrate that compliance would be "unreasonably burdensome," which is pretty much standard language for escaping a disclosure duty. As I understand the technological issues, Apple is being asked to create a special-purpose iOS that removes the password protection upon installation. Apple's public statement does not claim that this is an especially difficult engineering task for its programmers. Rather, Apple's concerns are, as noted above, for the privacy and security of the users of its products more generally.

Does that count as a burden? I very much doubt that the courts will say so, but maybe Apple's argument here is not quite as bad as it at first appears. Apple says that its customers depend on the built-in security features of the iPhone for their security, adding that under the order, "[t]he same engineers who built strong encryption into the iPhone to protect our users would, ironically, be ordered to weaken those protections and make our users less safe."

One might read this objection as invoking something akin to a smartphone maker-customer privilege. Suppose that instead of seeking assistance from Apple in decrypting an iPhone, the FBI were seeking the assistance of a doctor in performing an execution or in developing some mechanism for defeating a patient's interests. Then we would say that the government should not be permitted to impose on a doctor an obligation that is fundamentally inconsistent with her professional medical duty to her patients--at least absent a demonstration by the government of a truly compelling need.

There is a key difference here, of course. State and federal law generally recognize a doctor-patient privilege, whereas there is no manufacturer-customer privilege. But maybe that oughtn't to be controlling. After all, under federal law, the courts can recognize new privileges without any new legislation (as when the SCOTUS recognized a therapist-patient privilege in Jaffee v. Redmond). And Apple wouldn't even be asking for a full privilege against turning over existing information--just the right not to be made to develop a new tool for undermining its customers' privacy and security.

To be clear, I think Apple will likely lose this fight--at least given the case law we have. A functional Congress could well decide that permitting the sort of court order at issue in this case does more harm than good, but then, a functional Congress would do a lot of other useful things too.

------
* Throughout the foregoing post, I refer to "encryption," but the feature at issue is a very primitive version of encryption. After ten unsuccessful attempts at entering a password, iOS wipes the iPhone's memory. The FBI is seeking code from Apple that will eliminate the ten-attempt limit, so that it can unlock Farook's iPhone by guessing all 10,000 possible 4-number passwords. (It's an iPhone 5c, which lacks fingerprint recognition.)

Thursday, February 18, 2016

"We must change policy X for the good of our children and grandchildren!" "Future generations are depending on us to do the right thing!!" As frequent readers of Dorf on Law know, much of my time over the past several years has been devoted to trying to understand what motivates such calls for intergenerational justice. Philosophers have not reached agreement on whether there is any obligation at all from one generation to another, and even those who are willing to say that such an obligation does exist have not been able to articulate even the beginnings of a framework to determine who owes what to whom.

Several years ago, the George Washington Law Review organized a symposium on the question of intergenerational justice. Included in that volume is my original paper on the subject, What Do We Owe Future Generations?, along with responses to my paper by four scholars who generously engaged with the ideas laid out therein. (Other papers in the volume include one by frequent Dorf on Law contributor Professor Robert Hockett.) I argued that intergenerational framing is morally incoherent, and that the proper concern is the standard distributional question of rich versus poor. That does not mean that we should only care about current people and ignore the future. Quite the contrary. We should care about improving the lot of poor people whenever they live, now or in the future. And we should redistribute resources to those poorer people from richer people, whether they are alive now or in the future.

This was, I thought, a rather provocative position. The idea that we should simply reject "justice between generations" as a proper framing of the question is not the consensus view, to say the least. Even though I remain comfortable with my argument in that paper, it still strikes me as counter-intuitive. Interestingly, however, one of the commentators on my paper took some of my arguments and ran with them in an even more provocative direction. Professor Lawrence Zelenak of Duke Law School argued that, although my moral argument would still stand even if average living standards were not predicted to rise in the future, I had made something of a big deal in my paper of the spectacular rise in living standards that is implied in even the most pessimistic long-term economic forecasts. For example, the Social Security Trustees' 75-year forecasts are frequently cited as proof of fiscal doom, but they actually show that inflation-adjusted living standards are likely to more than triple in the next 75 years, and they could more than quadruple under very plausible assumptions. (Even the low-end scenario involves more than a doubling of living standards in that time period.)

Zelenak's move was to ask, in essence: What if we ignore Buchanan's argument that we should not try to redistribute between generations, while taking seriously his call for liberal egalitarian redistribution from rich to poor? If future generations are predictably going to be much richer than current generations, should we not actively redistribute from the rich to the poor by deliberately engaging in policies that take from the future and give to the present? If Robin Hood were a time traveler, would he not look at people in 2016 and 2091 and ask, "How can I in good conscience not help these poor early-21st-century wretches, when their great-grandchildren have so much?"

I thought of Zelenak's question recently in a much more prosaic context. (I should emphasize that Professor Zelenak was neither endorsing nor rejecting the implications of his formulation. He simply wanted to raise the issue.) In a recent opinion piece in The Washington Post, the liberal economist Jared Bernstein argued that Republicans' plans for root-and-branch tax reform were foolish pipe dreams, not only because the politics would be impossible but because the payoff from any of those grandiose plans would be so minimal.

All of the Republicans' plans rely on the magic of tax cuts, especially tax cuts for the rich, to significantly increase growth. Bernstein quotes a paper by some Urban Institute economists: "At the federal level, there is virtually no evidence that broad-based
tax cuts have had a positive effect on growth…That has been amply
demonstrated at the national level, where tax cuts have eroded revenue
without discernable effect on economic activity."

This is hardly news. Back in 2012, I wrote a Verdict column summarizing the astoundingly weak case for the proposition that tax cuts increase economic growth. For anyone actually paying attention to the empirical literature, it is obvious that tax policies have had minimal-to-zero effects on economic growth. It is only because of lingering Laffer Curve-ism and the allure of believing that economic growth will make everything easily affordable -- a problem widespread among Republicans, but unfortunately now showing up in the Sanders campaign in a different form -- that we still see so much effort to convince people that tax cuts are game changers.

This, in turn, raises an even more provocative possibility. If we take Zelenak's logical extension of my argument seriously, we would want to enact policies that would reduce future living standards in order to increase current living standards. But is that even possible? The usual argument about tax cuts and government spending increases for non-rich people is that such deficit-increasing policies will hurt future generations, so we should not give into temptation to live in the moment. My argument, then, amounted to saying that we can afford to indulge our desire to help current poor people, because the people we are taking money from will have a higher ability to pay, which is the essence of the standard distributive justice argument.

But what if that is simply not the way things work? What if efforts to improve distributive justice today could be successful, yet they would not cost future generations anything in terms of living standards? Indeed, what if bequeathing to the future a more equal society is itself a moral imperative, so that redistribution today is not merely a matter of helping current generations but future generations, too?

Of course, there are plenty of other ways to destroy the economy. Getting into an ever-expanding series of endless wars can drain the economy's resources and its ability to grow. Destroying the environment can make future commerce much more difficult to transact, and it can divert resources to protecting population centers from natural disasters.

Yet none of these policies are on the progressive agenda. The idea, even at the Buchanan-Zelenak extreme, is to transfer income/wealth from richer people to poorer people, and to do so across time as necessary. It turns out, however, that the tools that are available to move resources from rich people to poor people -- progressive tax systems and income support programs, universal education, and so on -- are simply not likely to have the effect of reducing future living standards, even if we thought that it would be good to do so.

Finally, I should be clear that I am not saying that this creates a "free lunch." Progressive redistributive policies benefit some people today at the expense of other people today. The people who would lose under progressive redistributive policies bankroll Republican politicians' campaigns. It simply appears that it is possible to redistribute wealth from those people without also reducing average future living standards. Politically, that is useful to know. But it is not morally required.

Wednesday, February 17, 2016

My column for this week is about a Second Circuit case, decided at the end of January, United States v. Allen. In Allen, the court held that when police arrest a suspect who is standing inside the threshold of his home, the arrest counts as a "home arrest," even though the police are standing outside the suspect's home. This is a question that has not yet come up before the Supreme Court, but I argue (as does the majority opinion) that an arrest of this sort invades the privacy of the home in the ways that home arrests generally do and that, accordingly, police should have to obtain an arrest warrant (as they generally do, prior to performing home arrests) before conduct a "threshold" arrest. As I concluded in my column, the Second Circuit made the right decision in this case by honoring the invaded vulnerability that occurs when police tell a person who is inside his home (and as is often the case, is not wearing shoes and has a child in the home) that he is under arrest and must leave his place of safety and privacy.

In this post, I want to suggest that even though the Second Circuit got it right, there is nonetheless something unsatisfying about the solution: if police decide to perform a home arrest (including an across-the-threshold home arrest) rather than arrest a suspect in public, they must first obtain an arrest warrant. Consider the fact that all an arrest warrant does is attest to the fact that police have probable cause to arrest the suspect. Without probable cause to arrest, police would be wrongfully denying the suspect his liberty by arresting him. In the case of a home arrest, however, police are doing more than depriving a suspect of liberty; they are also invading the private space of his home, his refuge from the outside world. It therefore seems that even though an arrest warrant is better than nothing, it fails to address the particular thing that makes a home arrest more troubling than a street arrest -- the invasion of the home.

One way in which Fourth Amendment doctrine could address the home invasion would be by requiring that police not only obtain an arrest warrant (attesting to probable cause to arrest) but that they also obtain a search warrant (attesting to probable cause to believe that the object of their search -- the suspect to be arrested -- is in fact located inside his home at the time they intend to go and arrest him). Such a warrant would help avoid the scenario in which the police show up at the house, find that no one answers the door, and then break in and look around until they satisfy themselves that the suspect is not in fact home at the time.

Yet even a search warrant might seem less than adequate. It ensures perhaps that the suspect is indeed at home, but it does not help justify the choice to arrest a suspect at home rather than on the street. To the extent that the choice to do the former rather than the latter constitutes an extra deprivation (beyond the liberty loss inherent in an arrest), police should perhaps have to make some showing of necessity or good reason to justify the choice to arrest a person at home. Absent such a showing, it might indeed seem unreasonable to choose to arrest a person in the home, where the person has more to lose (privacy in addition to liberty), even if there is a warrant that attests to the fact that (1) police have reason to arrest him (somewhere) and (2) he is likely to be at home at the particular times selected.

In a Columbia Law Review article I published some years ago, The Qualitative Dimension of Fourth Amendment Reasonableness, I made a version of this argument, suggesting that the Court's way of trying to protect against substantively more invasive police activity (such as a home arrest) through the instrument of the purely procedure arrest warrant ultimately fails to fulfill its objective. I continue to believe that we could stand to have a more substance-sensitive Fourth Amendment jurisprudence. Nonetheless, given that we generally do not, I still applaud the Second Circuit for expanding the scope of the arrest warrant requirement to extend to what I agree are properly called "home arrest" situations, where police show up at the threshold of a person's home and place the person under arrest while he stands, helpless, inside of his home.

Tuesday, February 16, 2016

Professor Dorf and I have co-authored a new article, which is now available for download on SSRN and which we hope will soon be coming to a law review near you. (Hello, articles selection editors!) The article's title is "Don't End or Audit the Fed: Central Bank Independence in an Age of Austerity." Among other intellectual treats, readers of the paper will learn what a "spandrel" is.

Here, I will describe our motivations for writing the paper, as well as a few of its major points. But first, here is the abstract:

The Federal Reserve (“Fed”) is the central bank of the United States. Because of its power and importance in guiding the economy, the Fed’s independence from direct political influence has made it a target of ideologically motivated attacks throughout its history, with an especially aggressive round of attacks coming in the wake of the 2008 financial crisis and ongoing today. We defend Fed independence. We point to the Fed’s exemplary performance during and after the 2008 crisis, and we offer the example of a potential future crisis in which Congress fails to increase the debt ceiling to show how the Fed’s independence makes it the only entity that can minimize the damage during crises (both market-driven and policy-induced). We further argue that the Fed’s independence is justified to prevent self-dealing by politicians, even when no crisis is imminent. Although the classic justification for Fed independence focuses on the risk that political actors will keep interest rates lower than appropriate for the long-term health of the economy, we show that Fed independence addresses the risk of self-dealing and other pathologies even when, as now, political actors favor tighter monetary policy than appropriate for the long-term health of the economy.

I have argued frequently that the "both extremes are equally crazy" view of American politics -- in which both the liberal and conservative parties are assumed to include equally reasonable centrists who disagree on matters of degree, while both parties are also thought to include equally unreasonable extremists -- simply does not describe the U.S. in the 21st Century, if indeed it ever did. For example, in my Verdict column and especially in my accompanying Dorf on Law post last Thursday, I contrasted the extremism of the supposedly mainstream Republican presidential candidates with the surprisingly non-extreme content of Bernie Sanders's "Democratic Socialist" views.

Whether one agrees or disagrees with me about any of that, there is definitely one policy area in which a politically important part of the left and a politically important part of the right are both dangerously extreme. (I say "politically important" to rule out the common move in faux-balanced reporting that draws false equivalence between something that, say, the hyper-conservative Speaker of the House might say and a nutty comment from some random kid at a Sanders rally.) That area of shared worrisome extremism is monetary policy. Interestingly, the too-extreme policy change favored by both the far left and the far right is the same: "End the Fed." Although the "audit the Fed" move is intended to sound less extreme, it is in fact the proverbial wolf in sheep's clothing. Either way, the idea is to attack the policy independence and political insulation that characterizes the modern central bank. We think that it would be a catastrophic error to compromise the Fed's independence.

We frame the paper by noting the possibility that events have overtaken the justification for independent central banks. The standard argument, after all, has always been that elected politicians cannot be trusted with the levers of monetary policy because of an inherent bias toward ruinously expansionary policies. Governments are elected and maintain their popularity, according to this view, by making promises to the hoi polloi, who just want "stuff." (Note that this is the view that Mitt Romney adopted to explain his loss in the 2012 election: Obama just gave voters "gifts" to get reelected.) And when it turns out that there is not enough money in the state treasury to pay for all that stuff, politicians will give into temptation and use the printing press to cover the bills, setting in motion hyperinflation. Fill in your favorite historical example here.

As the subtitle to our article suggests, however, this justification for Fed independence might no longer have any real-world significance. The political atmosphere in the U.S. and (even more) in Europe and the U.K. has been ruinously parsimonious since 2008, with politicians insistently refusing even to be responsibly responsive to the state of the economy. There has certainly been no support on either the left or the right to spend, spend, spend, and spend some more. If we live in an age when "austerians" rule the roost, why do we still need an independent Fed?

We respond to that question in several ways. The response that is most true to the original concern is that political winds can blow in many directions, and we maintain vigilance not just when times are bad but when times are good. (Let us set aside the point that there is nothing "good" about austerity in the current environment. We simply mean that ruinous austerity does have the silver lining of making hyperinflation nearly impossible.) Turning the Fed into a political institution that is controlled by elected officials would be a huge mistake, in our view, at the very least because it would be nearly impossible to return to an independent central bank during a precipitous turn away from austerity.

We further point out that the Fed's degree of independence, which is obviously not absolute, is necessary to prevent politicians from using monetary policy to influence election results. In contrast to other quasi-independent agencies that are nonetheless housed within the Executive branch, the Fed's policy levers are especially amenable to short-term manipulation. As important as the decisions made by, say, the EPA might be, those decisions will almost certainly not affect the economy in a predictable way that could advantage the "ins" and disadvantage the "outs" in the next election. We note that, even in an age of austerity, it is possible to use monetary policy negatively to harm the election prospects of some of the "ins," especially during a period of divided government.

We also observe that the people who are truly worried about "big government" should be especially enthusiastic about the importance of independent monetary policy. Because cuts in federal spending tend to increase unemployment (both directly and due to multiplier effects), liberals like me will often resist cuts to government spending by noting that such cuts will harm the economy. The standard response from orthodox anti-government types is, "Don't worry, the Fed will offset any contractionary impact of these cuts." That response is inoperative during a prolonged period of slack, because interest rates are already as low as they can go, but in something resembling more normal times, the existence of an independent Fed that can credibly promise to maintain something like full employment in the face of reduced government spending removes one argument that people like me might otherwise rely on. Arguments for and against spending cuts must be made on their direct merits, not their indirect effects. As much as I might otherwise like to have more arrows in my quiver, this is as it should be.

Regular readers of Dorf on Law will have noted in the abstract above that, to the surprise of no one, we tie our analysis back into the debate over the federal debt ceiling. Indeed, it is the Fed's possible role during a debt ceiling crisis that motivated much of our initial thinking about the importance of the Fed's independence. Having an independent Fed will be essential if the Republicans ever follow through on their threats to refuse to increase the debt ceiling, because only the Fed will be able to respond quickly and appropriately to the disastrous impact that such a political crisis would otherwise create. If both fiscal and monetary policy were controlled by hyper-extreme politicians, by contrast, then there would be nothing standing in the way of outright disaster.

Even without that 800-lb. gorilla in the room, however, we conclude that the Fed's independence serves extremely important purposes. Ours is not, we hasten to add, an argument for "technocracy all the way down." Whatever one thinks about the role of independent and quasi-independent agencies, we think that the Fed's role is so different and so powerful that it would be a monumental and historic error to listen to the people on the right and the left who want to turn the Fed into more of a politically manipulable actor. We encourage readers to read our article and judge for themselves.

Monday, February 15, 2016

by Michael Dorf
On Wednesday of last week, Ilya Shapiro (of the Cato Institute) and I participated in a wide-ranging discussion of constitutional (and some other) issues raised by the presidential election campaign, moderated by Jeffrey Rosen (and available on the National Constitution Center website as well as via iTunes). As in the past when we have been paired together, Mr. Shapiro and I agreed on some matters, disagreed on others, and, at least as far as I'm concerned, the three of us had a very interesting conversation. The podcast runs about an hour. Thus, readers who are thinking about listening to it might wish to download it to their mobile devices so that they can multitask while doing so.

Because the discussion preceded Justice Scalia's death, the discussion did not focus on appointments to the Supreme Court. Instead, we mostly considered issues raised by the presidential candidates. We talked about: populism (Trump/Sanders/historical precedents); the constitutionality of Trump's (despicable) proposal to ban Muslims from entering the United States; whether Ted Cruz is a "natural born citizen" who is eligible for the presidency; whether President Obama's executive actions on immigration and gun control violate the Take Care Clause or are otherwise unlawful; and more. I'm not going to rehash the discussion here. Instead, I want to raise a question about a point that Professor Rosen made, with which Mr. Shapiro agreed and I seemed to agree tacitly. The point is that it is a sign of intellectual honesty when one advocates a constitutional result contrary to one's own policy preferences. This view is widely shared but perhaps inadequately justified.

We can articulate different levels at which policy views might diverge from constitutional views. Just about everyone agrees that partisan political views have no proper place in constitutional (or any other kind of) adjudication. That is why the accusations after the Supreme Court's 2000 decision in Bush v. Gore that Republican-appointed justices voted as they did because they preferred that Bush be president than that Gore be--and the counter-accusations that Democratic-appointed justices voted as they did because they preferred Gore--were understood by everyone to be accusations of impropriety of the highest order. One's constitutional views are not supposed to bend because of the identity of the litigants.

One level down (or up, or to the side, depending on how we're measuring these things), we find divergence between policy views on a particular issue and the application of constitutional principle. Here too, if one is faithfully applying the constitutional principle, then it oughtn't to matter whether in the particular case it leads to a result one dislikes. Justice Kennedy's concurrence in the flag-burning case, Texas v. Johnson, is a good example of this sort of divergence, as are free speech/free press cases more generally. Thus, when Professor Colb and I recently raised concerns about the potential chilling effect on free speech of the prosecution of the pro-life activists who conducted an undercover "sting" of Planned Parenthood, we were not at all bothered by the fact that those activists aimed to make a point with which we disagree.

It's easy to pat yourself on the back for applying principles even when they lead to particular results with which you disagree, but perhaps judges and scholars give ourselves too much credit for this sort of thing--at least where we support the broader principle. For example, during our discussion, Mr. Shapiro noted that he believes that President Obama's assertion of executive authority on immigration is unconstitutional even though he favors the substantive policy. That is a divergence, to be sure, but it's really not hard to explain. What Mr. Shapiro is really saying is that he thinks that, in the long run, separation of powers (as he understands it) is more important than immigration reform. Justice Kennedy was saying something similar about freedom of speech in Texas v. Johnson, as were Prof. Colb and I in our Planned Parenthood op-ed. In these examples, none of us is saying "I think the best result, all things considered is X, but the Constitution as best understood says Y." We are instead saying something more like this: "All things considered, over the long run, we will do better by adhering to principle Y, even though it leads to a result I happen not to like in this particular case." These are not, ultimately, examples of putting the Constitution over our own policy views; they are examples of us making all-things-considered long-term judgments.

What would be an example of true bullet biting? Consider our exchange over natural-born citizenship (NBC). Mr. Shapiro thinks that Ted "Cruz’s eligibility isn’t a hard constitutional question": he's eligible. Neal Katyal and Paul Clement more or less agree. Michael Ramsey thinks that it's at least a somewhat difficult question but reaches the same conclusion on originalist grounds. But from the other direction, Eric Posner thinks that the best reading of the NBC Clause precludes Cruz's eligibility. So does Einer Elhauge. And Mary Brigid McManamon. I doubt that any of this disagreement turns on the various scholars' views about the desirability of a Cruz presidency, so we don't have the first kind of illegitimate influence of political views on constitutional interpretation.

But maybe the Cruz-is-eligible crowd is engaged in the second kind of all-things-considered reasoning. I'll use myself as an example. I think that the NBC Clause is stupid and offensive. However, I recognize that it is still part of the Constitution. Thus, even though I think an ideal Constitution would permit naturalized citizens to become president, I recognize that Arnold Schwarzenegger and Madeleine Albright are ineligible. Presumably, all of the other scholars who think that Cruz is eligible also recognize that some people are ineligible. Here we have an example of true bullet biting. We all think that, all things considered, people like Schwarzenegger and Albright should be eligible for the presidency, but that the Constitution forbids this.

Yet notice that I only get to bullet biting of this sort when we come to an issue as to which the Constitution speaks very clearly. If one takes seriously the point that Prof. Rosen was making--that it is a virtue for one's policy views to diverge from one's constitutional views--then one would think that it ought to have some operation even in some cases where the Constitution is unclear. In other words, anyone can follow the Constitution (even if it's stupid or offensive) when it leaves no room for reasonable disagreement, but a really virtuous constitutionalist should at least from time to time construe the Constitution to mean something inconsistent with her policy views even when the text and other relevant materials leave room to construe it as consistent with her policy views. Right?

Well, no. Rather than make the argument myself, however, I think I'll close by challenging this claim by quoting the late great Ronald Dworkin, who wrote the following (at p. 36 of his 1996 book Freedom's Law) in defense of what he called "the moral reading," which is roughly synonymous with what is usually meant by the living Constitution:

It is said that the results I claim for the moral reading, in particular constitutional cases, magically coincide with those I favor politically myself. As one commentator has put it, my arguments always seem to have happy endings. Or, at any rate, liberal endings . . . . This is suspicious, it is said, because I insist that law is different from morality, and that legal integrity often prevents a lawyer from finding in the law what he wishes were there. Why, then, is the American Constitution, as I understand it, so uniform a triumph of contemporary liberal thought?

After fighting the factual basis for the accusation by giving some examples of policies he favored that the Constitution either forbade or didn't require, Dworkin went on to challenge the premise

that it is embarrassing for the moral reading when those who accept it find happy endings to their constitutional journeys. Of course my constitutional opinions are influenced by my own convictions of political morality. So are the opinions of lawyers who are more conservative and more radical than I am. . . . Constitutional politics has been confused and corrupted by a pretense that judges (if only the were not so hungry for power) could use politically neutral strategies of constitutional interpretation. Judges who join in that pretense try to hide the inevitable influence of their own convictions even from themselves, and the result is a costly mendacity.

So, although Professor Rosen's point is a commonplace (and one I have accepted in the past), unpacking it suggests that there is less there than meets the eye.